Ilya Shapiro (Author at Cato Institute)Individual Liberty, Free Markets, and Peacehttp://www.cato.org/
enamast@cato.org (Andrew Mast)webmaster@cato.org (Cato Webmaster)Thu, 30 Jul 2015 15:26:27 -0400Thu, 30 Jul 2015 15:26:27 -0400Of Rotten Eggs and Guilty Mindshttp://www.cato.org/blog/rotten-eggs-guilty-minds
<p>It isn’t every day that a person can go to his or her job, work, not participate in any criminal activity, and still get a prison sentence. At least, that used to be the case: the overcriminalization of regulatory violations has unfortunately led to the circumstance that corporate managers now face criminal—not just civil—liability for their business operations’ administrative offenses.</p>
<p>Take Austin and Peter DeCoster, who own and run an Iowa egg-producing company called Quality Egg. The DeCosters plead guilty to violating certain provisions of the Food, Drug, and Cosmetic Act because some of the eggs that left their facilities contained <em>salmonella enteritidis</em>, a bacterium harmful to humans. They were sentenced to 90 days in jail and fined $100,000 for the actions of subordinates, who apparently failed, also unknowingly, in their quality-control duties.</p>
<p>In other words, the “crime” that the DeCosters were convicted of didn’t require them to have put eggs with salmonella into interstate commerce, or even to have known (or reasonably been able to foresee) that Quality Egg was putting such eggs into interstate commerce. It didn’t even require the quality-control operator(s) most directly involved in putting the contaminated eggs into interstate commerce to have known that they were contaminated.</p>
<!--break--><p>
Nearly a century of jurisprudence has held that imprisoning corporate officers for the actions of subordinates is constitutionally suspect, given that there’s neither <em>mens rea </em>(a guilty mind) <em>nor even a guilty act</em>—the traditional benchmarks of criminality since the days of Blackstone. Yet there are about 300,000 regulations that can trigger criminal sanctions. These rules are too often ambiguous or arcane, and many lack any requirement of direct participation or knowledge, imposing strict liability on supervisors for the actions (or inactions) of their subordinates.</p>
<p>In <em>United States v. Quality Egg</em>, the district court ruled that courts have previously held that “short jail sentence[s]” for strict-liability crimes are the sort of “relatively small” penalties that don’t violate constitutional due process. Such a sentence has only been imposed once in the history of American jurisprudence, however, and for a much shorter time on defendants with much more direct management of the underlying bad acts. Additionally, prison is not the sort of “relatively small” penalty—like a fine or probation—that the Supreme Court has allowed for offenses that lack a guilty mind requirement.</p>
<p>Joining the National Association of Manufacturers, Cato points out in an <a href="http://object.cato.org/sites/cato.org/files/wp-content/uploads/decoster_8th_cir_7-27-15.pdf">amicus brief</a> supporting the DeCosters’ appeal that this case presents an opportunity for the U.S. Court of Appeals for the Eighth Circuit to join its sister court, the Eleventh Circuit, in holding that prison sentences constitute a due-process violation when applied to corporate officers being charged under a strict-liability regulatory regime.</p>
http://www.cato.org/blog/rotten-eggs-guilty-mindsThu, 30 Jul 2015 15:23 EDTIlya Shapiro (Author at Cato Institute)Ilya Shapiro, Randal John MeyerIlya Shapiro discusses a balanced-budget amendment on a Compact for America Educational Foundation podcasthttp://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-balanced-budget-amendment-compact-america
http://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-balanced-budget-amendment-compact-americaWed, 29 Jul 2015 13:17 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroTaking Voter Equality Seriouslyhttp://www.cato.org/publications/commentary/taking-voter-equality-seriously
<div class="subhead"><p><strong><em>The issue in a nutshell</em></strong></p></div>
<p>The “one person, one vote” standard (OPOV) has become an axiomatic part of election law: Whatever mischief happens during the decennial redistricting process, states can’t draw districts with wildly disproportionate populations, such that a vote in lightly populated districts is worth much more than a vote in heavily populated districts.</p>
<p>It’s an easy principle to understand. You can avoid getting tied into knots determining whether a given regulation is “congruent and proportional” to the problem it addresses — and you can stay out of the thicket of “undue burdens” and other jurisprudential monstrosities.<span id="more-230543"> </span></p>
<p>Instead, OPOV solves the old “<a href="https://en.wikipedia.org/wiki/Rotten_and_pocket_boroughs" target="_blank">rotten borough</a>” problem, where some British parliamentarians represented constituencies where very few — or no! — people lived. This became an issue in the United States as the country urbanized but depopulated rural areas maintained disproportionate voting power in state legislatures and congressional delegations. The Supreme Court ruled in the 1964 case of<em>Reynolds v. Sims </em>that political map-designers can’t dilute the franchise that way and instead must draw districts with roughly equal numbers of people.</p>
<p>In other words, each person’s vote should be equal, as guaranteed by the Constitution; nobody gets more votes based on wealth, education, occupation, sex, race, <em>or geography</em>. None of this is or should be controversial.</p>
<blockquote class="pullquote right">
<p class="pq-quote"><span class="open-quote">“</span><span class="pq-body">The noble principle of OPOV needs to be saved from the legal morass of Voting Rights Act jurisprudence.”</span></p>
</blockquote>
<p>But a funny thing happened on the way to electoral utopia: just as the Industrial Revolution fomented radical population shifts, modern immigration patterns have created disparities in the number of voters per district. Just as it was intolerable for a rural district with 500 voters to have the same representation in a state legislature as an urban district with 5000 voters, it’s now constitutionally suspect to have that disparity between a heavily (non-citizen) foreign-born district and one with mostly native-born citizens. In each case, the Supreme Court must intervene to maintain voter equality.</p>
<p>While the specific case now before the Court, <em><a href="http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/" target="_blank">Evenwel v. Abbott</a></em>, doesn’t present the stark 10:1 ratio in voting power I just stylized, the disparities are nonetheless significant: as detailed by the challengers to Texas’s districting map detail (see tables on pages 8-10 of their <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2015/05/14-940-js-pet.pdf" target="_blank">jurisdictional statement</a>), some state senate districts deviate by as much as fifty percent from the ideal. That means that twice as many voters may elect a state senator in one district as in the smallest district.</p>
<p>In sum, regardless of one’s views of <em>Evenwel</em>’s particular facts, it has to be the case that disparities between the number of voters in state districts raises a constitutional issue. Otherwise, even 10:1 or 100:1 ratios wouldn’t be a problem. And if all we’re talking about here is line-drawing rather than first principles, then the challengers win.</p>
<p><strong><em>Cato’s briefing</em></strong></p>
<p>I don’t want to simply summarize the challengers’ arguments, so let me focus instead on two points that Cato is developing for our <em>Evenwel</em> merits brief: (1) the inaptness of the so-called “federal analogy” (which I’ll explain); and (2) that when the Voting Rights Act (VRA) conflicts with the Constitution, the latter trumps.</p>
<ol>
<li><em>The federal analogy</em></li>
</ol>
<p>When the Supreme Court was asked more than fifty years ago to uphold grossly disproportionate state legislative districts, Alabama argued that states should be allowed to implement a “little federal system” that would be “framed after the Federal System of government—namely one senator in each county of the state.”</p>
<p>The Court correctly realized then that “the federal analogy [is] inapposite and irrelevant to state legislative districting schemes.” After all, the states are “separate and distinct governmental entities which have delegated some, but not all, of their formerly held powers to the single national government,” whereas “[p]olitical subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities, [but rather] have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Further, because “[t]he system of representation in the two Houses of the Federal Congress … [arose] from unique historical circumstances,” “the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted.”</p>
<p>The Court is now presented with a new, twenty-first-century federal analogy, this time relating to the other chamber of Congress. Texas and its supporters are arguing that because the Constitution allocates congressional representatives by total population rather than voter population, states should be able to do the same for their own legislative districts.</p>
<p>This federal analogy works no better than the last one. Careful study of the original public meaning and history of both Section 2 of Article I and Section 2 of the Fourteenth Amendment show that the rule they established is one for dealing with separate states that possess a great deal of legal autonomy — first and foremost in defining for themselves who shall have the right to vote. Once again, states are asking that they be allowed to treat their legislative districts as if they were separate states.</p>
<p>Since the federal rule provides no support for state inequalities, we’re left back at the same simple principle the Court has consistently upheld, that “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”</p>
<ol>
<li><em>The Voting Rights Act vs. the Constitution</em></li>
</ol>
<p>Another argument has been put forward to justify violating OPOV — that Section 2 of the VRA requires gerrymandering state legislative districts to create majority-Hispanic districts where possible, and that this “compelling interest” justifies the effect of unequal voter strength. This argument fails because even if the VRA does ask states to do such gerrymandering, such legislation can’t trump the Constitution. Where the VRA conflicts with the Fourteenth Amendment, the VRA must give way.</p>
<p>Let me explain. States are now caught in the inevitable trap of (1) maintaining majority-minority districts under complex, overlapping legal precedents and (2) administering electoral schemes that do little to advance racial equality while doing much to undermine <em>voter</em> equality. In the background of this conflict, there lurks a cacophony of precedent and oft-conflicting court-administered standards that have arisen from cases interpreting Section 2 of the VRA. Basic constitutional guarantees of equal protection inherent in the Fourteenth Amendment — such as OPOV — get lost in this thicket.</p>
<p>Avoiding racial discrimination is particularly difficult in jurisdictions where “total population” and “citizens of voting age population” (CVAP) — standard metrics for evaluating whether a district violates OPOV — diverge due to varied concentration of non-citizens. As I’ve <a href="http://www.scotusblog.com/2013/02/shelby-county-v-holder-section-5-of-the-voting-rights-act-conflicts-with-section-2-which-provides-the-proper-remedy-for-racial-discrimination-in-voting/" target="_blank">described before</a>, jurisdictions navigating between the VRA’s Scylla and the Constitution’s Charybdis are bound to wreck individual rights — here, voter equality — on judicial shoals.</p>
<p>Over the years, the Supreme Court has repeatedly recognized the potential for devaluing individual votes by drawing majority-minority districts in a manner that accords greater weight to minority votes in protected districts and diminishes the relative weight of voters elsewhere. In 2000, in <em>Chen v. City of Houston</em>, the Fifth Circuit also recognized this danger while ultimately ruling the other way. Nevertheless, here the special district court adhered to that flawed lower-court precedent — refusing to acknowledge CVAP as integral to OPOV and thus a required element of equal protection.</p>
<p>At least one Justice — Justice Clarence Thomas, dissenting from the denial of certiorari in the <em>Chen</em> case in 2001 — has already recognized the urgency of the problem: “Having read the Equal Protection Clause to include a ‘one-person, one-vote’ requirement, and having prescribed population variance that, without additional evidence, often will satisfy the requirement, we have left a critical variable in the requirement undefined.”</p>
<p>The VRA’s Section 2 and the Fourteenth Amendment have thus reached an impasse that has been highlighted by a conflict among lower courts’ application of OPOV. (The Fifth Circuit has held that states can choose either total population or CVAP on the grounds that the Equal Protection Clause is ambiguous, the Fourth Circuit reached the same conclusion but through the “political question” doctrine, and the Ninth Circuit held that states can only use total population, in a split 2-1 decision that provoked a strong dissent by Judge Kozinski.) It’s thus heartening that the Court took up<em>Evenwel</em> — and hopefully it will resolve that conflict once and for all by explaining the proper use of different population metrics. The noble principle of OPOV needs to be saved from the legal morass of Voting Rights Act jurisprudence.</p>
http://www.cato.org/publications/commentary/taking-voter-equality-seriouslyWed, 29 Jul 2015 10:40 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroUnited States v. DeCosterhttp://www.cato.org/publications/legal-briefs/united-states-v-decoster
<p>It isn’t every day that a person can go to his or her job, work, not participate in any criminal activity, and still get a prison sentence. At least, that used to be the case: the overcriminalization of regulatory violations has unfortunately led to the circumstance that corporate managers now face criminal—not just civil—liability for their business operations’ administrative offenses. Take Austin and Peter DeCoster, who own and run an Iowa egg-producing company called Quality Egg. The DeCosters plead guilty to violating certain provisions of the Food, Drug, and Cosmetic Act because some of the eggs that left their facilities contained <em>salmonella enteritidis</em>, a bacterium harmful to humans. They were sentenced to 90 days in jail and fined $100,000 for the actions of subordinates, who apparently failed, also unknowingly, in their quality-control duties. In other words, the “crime” that the DeCosters were convicted of didn’t require them to have put eggs with salmonella into interstate commerce, or even to have known (or reasonably been able to foresee) that Quality Egg was putting such eggs into interstate commerce. It didn’t even require the quality-control operator(s) most directly involved in putting the contaminated eggs into interstate commerce to have known that they were contaminated. Yet nearly a century of jurisprudence has held that imprisoning corporate officers for the actions of subordinates is constitutionally suspect, given that there’s neither <em>mens rea</em> (a guilty mind) <em>nor even a guilty act</em>—the traditional benchmarks of criminality since the days of Blackstone. It turns out that there are about 300,000 regulations that can trigger criminal sanctions. These rules are too often ambiguous or arcane, and many lack any requirement of direct participation or knowledge, imposing strict liability on supervisors for the actions (or inactions) of their subordinates. In <em>United States v. Quality Egg</em>, the district court ruled that courts have previously held that “short jail sentence[s]” for strict-liability crimes are the sort of “relatively small” penalties that don’t violate constitutional due process. Such a sentence has only been imposed once in the history of American jurisprudence, however, and for a much shorter time on defendants with much more direct management of the underlying bad acts. Additionally, prison is not the sort of “relatively small” penalty—like a fine or probation—that the Supreme Court has allowed for offenses that lack a guilty mind requirement. Joining the National Association of Manufacturers, Cato points out in an amicus brief supporting the DeCosters’ appeal that this case presents an opportunity for the U.S. Court of Appeals for the Eighth Circuit to join its sister court, the Eleventh Circuit, in holding that prison sentences constitute a due-process violation when applied to corporate officers being charged under a strict-liability regulatory regime.</p>
http://www.cato.org/publications/legal-briefs/united-states-v-decosterMon, 27 Jul 2015 15:21 EDTIlya Shapiro (Author at Cato Institute)Matthew G. Kaiser, Patrick N. Forrest, Ilya Shapiro, Randal John MeyerTexas Regulators Bark Up the Wrong Treehttp://www.cato.org/blog/texas-regulators-bark-wrong-tree
<p>For almost 50 years, Dr. Ronald Hines has been a licensed veterinarian in Texas. After a spinal cord injury prevented him from continuing to provide in-person services, Dr. Hines started a website to provide advice on pet care. He never tried to be an animal’s primary veterinarian—he noted a disclaimer to that effect—and did not prescribe medication. </p>
<p><span style="line-height: 1.3em;">After a decade of such practice without any complaints or problems, the Texas State Board of Veterinary Medical Examiners charged Dr. Hines with violating state law by failing to be physically present at the location of the pets before providing veterinary services. The U.S Court of Appeals for the Fifth Circuit upheld this restriction on Dr. Hines’s speech because, according to the court, any speech by a professional within the scope of his profession directed toward an individual’s circumstances isn’t protected by the First Amendment. </span></p>
<p><span style="line-height: 1.3em;">Dr. Hines has asked the Supreme Court to review the case and Cato has filed <a href="http://object.cato.org/sites/cato.org/files/wp-content/uploads/hines_cert-stage_7-25-15.pdf">a brief</a> supporting that petition, joined by the Mackinac Center for Public Policy. </span></p>
<p><span style="line-height: 1.3em;">The Fifth Circuit erroneously construed the Texas regulations as governing nonspeech conduct that only incidentally impacted speech. But everything that Dr. Hines did was speech!—there was no nonspeech conduct to regulate. Even if the regulations were content-neutral restrictions that incidentally restricted speech, the restrictions should have been reviewed under heightened scrutiny—meaning that the government would need to show a strong justification for its enforcement action. But the restrictions at issue here are explicitly content-based: Dr. Hines could’ve talked about any topic he wanted, except the topic of veterinary care. </span></p>
<p><span style="line-height: 1.3em;">Under the lower court’s logic, the following people would be unknowingly violating Texas law: Dr. Sanjay Gupta provides health information online; Loveline Radio provides relationship and drug-addition advice; The Mutual Fund Show provides financial advice; in addition to radio talk shows on pet care. All these people, and many others, would be expected to know and follow the detailed regulations of every single state. </span></p>
<p><span style="line-height: 1.3em;">The physical examination requirement doesn’t even make sense as a matter of basic veterinary practice. It only requires that vets visit a location, not that they actually examine a particular animal. It prevents a vet’s colleague from relying on notes and records when the primary-care vet is unavailable. Dr. Hines couldn’t even tell a client that her pet’s condition sounded serious and so the owner should, say, not let the animal drink water and bring it to him right away. </span></p>
<p><span style="line-height: 1.3em;">Moreover, someone who wasn’t a licensed veterinarian could have provided the same advice as Dr. Hines without a problem; the law prohibits good information from qualified individuals while allowing unqualified individuals to give bad advice. The regulation just ends up hurting the poor, who can’t afford to travel to Dr. Hines, and practically creates geographic limitations on speech. </span></p>
<p><span style="line-height: 1.3em;">The Supreme Court should take up <em>Hines v. Alldredge</em> and protect basic First Amendment rights in the context of occupational regulation.</span></p>
http://www.cato.org/blog/texas-regulators-bark-wrong-treeMon, 27 Jul 2015 06:25 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroHines v. Alldredgehttp://www.cato.org/publications/legal-briefs/hines-v-alldredge
<p>For almost 50 years, Dr. Ronald Hines has been a licensed veterinarian in Texas. After a spinal cord injury prevented him from continuing to provide in-person services, Dr. Hines started a website to provide advice on pet care. He never tried to be an animal’s primary veterinarian—he noted a disclaimer to that effect—and did not prescribe medication. After a decade of such practice without any complaints or problems, the Texas State Board of Veterinary Medical Examiners charged Dr. Hines with violating state law by failing to be physically present at the location of the pets before providing veterinary services. The U.S Court of Appeals for the Fifth Circuit upheld this restriction on Dr. Hines’s speech because, according to the court, any speech by a professional within the scope of his profession directed toward an individual’s circumstances isn’t protected by the First Amendment. Dr. Hines has asked the Supreme Court to review the case and Cato has filed a brief supporting that petition. The Fifth Circuit erroneously construed the Texas regulations as governing nonspeech conduct that only incidentally impacted speech. But everything that Dr. Hines did was speech!—there was no nonspeech conduct to regulate. Even if the regulations were content-neutral restrictions that incidentally restricted speech, the restrictions should have been reviewed under heightened scrutiny—meaning that the government would need to show a strong justification for its enforcement action. But the restrictions at issue here are explicitly content-based: Dr. Hines could’ve talked about any topic he wanted, except the topic of veterinary care. Under the lower court’s logic, the following people would be unknowingly violating Texas law: Dr. Sanjay Gupta provides health information online; Loveline Radio provides relationship and drug-addition advice; The Mutual Fund Show provides financial advice; in addition to radio talk shows on pet care. All these people, and many others, would be expected to know and follow the detailed regulations of every single state. The physical examination requirement doesn’t even make sense as a matter of basic veterinary practice. It only requires that vets visit a location, not that they actually examine a particular animal. It prevents a vet’s colleague from relying on notes and records when the primary-care vet is unavailable. Dr. Hines couldn’t even tell a client that her pet’s condition sounded serious and so the owner should, say, not let the animal drink water and bring it to him right away. Moreover, someone who wasn’t a licensed veterinarian could have provided the same advice as Dr. Hines without a problem; the law prohibits good information from qualified individuals while allowing unqualified individuals to give bad advice. The regulation just ends up hurting the poor, who can’t afford to travel to Dr. Hines, and practically creates geographic limitations on speech. The Supreme Court should grant review to protect basic First Amendment rights in the context of occupational regulation.</p>
http://www.cato.org/publications/legal-briefs/hines-v-alldredgeFri, 24 Jul 2015 08:47 EDTIlya Shapiro (Author at Cato Institute)Cynthia F. Crawford, Skyler R. Peacock, Trevor Burrus, Ilya ShapiroBut What about the Bakers?http://www.cato.org/publications/commentary/what-about-bakers
<p>Same-sex marriage is now the law of the land—and that’s a good thing.</p>
<p>While Justice Kennedy’s majority opinion made a hash of the reasoning, <em>Obergefell v. Hodges</em> was a rather simple case: states need not be in the business of licensing marriage, but if they are, they can’t draw a line the way they did. Nobody’s hurt by a big gay wedding.</p>
<p>Unfortunately, some people are now using that very basic lesson in equality under the law to hurt people who disagree with the Supreme Court.</p>
<p>The examples are well-known and will alas grow as public opinion shifts further in favor of gay marriage: the New Mexico photographer, the Washington florist, the New York farm owners. Each of these businesses was fined for declining to provide their services for a same-sex ceremony. Adding insult to injury, the Oregon bakers were both assessed $135,000 for causing “emotional damages” and ordered not to speak about their case.</p>
<p>But why? There are more than 100 wedding photographers in the Albuquerque area, and plenty of bakers willing to make whatever confections Adam and Steve want for their nuptials in Oregon. This isn’t the Jim Crow South, where the government enforced segregation laws, black travelers couldn’t find a place to stay for hundreds of miles, and violence was always in the offing.</p>
<blockquote class="pullquote right">
<p class="pq-quote"><span class="open-quote">“</span><span class="pq-body">The most basic principle of a free society is that the government can’t willy-nilly force people to do things that violate their beliefs.”</span></p>
</blockquote>
<p>Indeed, businesses now attract customers—even and especially straight customers—by advertising their gay-friendliness.</p>
<p>Moreover, there’s a difference between denying service to certain kinds of people and declining to participate in certain kinds of events. Should gay photographers be forced to work fundamentalist celebrations? Should blacks be forced to work KKK rallies? Should environmentalist bakers—plenty of those in Oregon!—be forced to make bear claws for job fairs in logging communities?</p>
<p>I don’t even know why you’d want to have as a wedding vendor someone who can’t in good faith (literally) support your union. If progressives respect diversity, shouldn’t they refrain from bending the will of fellow Americans toward prevailing pieties?</p>
<p>The response to my plea for tolerance is that this isn’t the case where “nobody is hurt”: those couples who are refused service certainly feel slighted, made to feel like second-class citizens. Perhaps the punishment just ought to fit the “crime” better, and this should be treated more like a traffic violation: write a ticket for $100 and be on your way.</p>
<p>Let’s think about that for a second. We know of societies where the cost of exercising one’s religious beliefs was a small tax—in ancient Islamic states where non-Muslims were excluded from political rights. Is that really what a nation founded on religious toleration has come to?</p>
<p>And this goes beyond gay weddings: through an ever-growing list of mandates and regulations, government compulsion squeezes out civil society and foments social clashes. Look at last week’s ruling against the Little Sisters of the Poor, where the appellate court decided that it knew better than the nuns what constituted a burden on religion.</p>
<p>The most basic principle of a free society is that the government can’t willy-nilly force people to do things that violate their beliefs. Some may argue that in these wedding cases there’s a conflict between religious freedom and gay rights—and marriage equality is more important—but that’s a “false choice,” as President Obama would say.</p>
<p>There’s no clash of individual rights in any circumstance other than when the government itself declines to consistently recognize and protect everyone’s rights. County clerks act on the state’s behalf and so must issue marriage licenses regardless of their personal beliefs, but bakers aren’t government agents and so should maintain freedom of conscience.</p>
<p>With certain things, such as national defense, basic infrastructure, and other “public goods,” we largely agree, at least inside reasonable margins. But we have vast disagreements about social programs, economic regulation, and so much else that government now dominates—forcing dissenters to plead for carve-outs of individual liberty.</p>
<p>Those who opposed same-sex marriage before the Supreme Court were thus rightly concerned that people would be forced to do what their deepest beliefs prohibit.</p>
<p>Justice Kennedy could’ve forestalled some of this mischief by making clear that his ruling protects not just the right to “advocate” and “teach” religion also but to “exercise” it. But he didn’t, so it’s left to the better angels of our pluralistic nature to respect views and lifestyles we may not like.</p>
http://www.cato.org/publications/commentary/what-about-bakersMon, 20 Jul 2015 09:51 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroThe Right to Earn a Living Deep in the Heart of Texashttp://www.cato.org/blog/right-earn-living-deep-heart-texas
<p>The same day three weeks ago that the Supreme Court ruled on same-sex marriage (<em>Obergefell v. Hodges</em>), our friends at t<span style="line-height: 1.3em;">he Institute for Justice claimed a </span><a style="line-height: 1.3em;" href="http://ij.org/texas-threading-release-6-26-15">strong victory</a><span style="line-height: 1.3em;"> in favor of individual rights and economic freedom in an important case before the Texas Supreme Court (a.k.a. SCOTEX).</span></p>
<p>In<a href="http://www.txcourts.gov/media/1008501/120657.pdf"><em> Patel v. Texas Department of Licensing and Regulation</em></a>, the court was faced with a state constitutional challenge to a licensing requirement that hair threaders acquire cosmetology licenses – to the tune of nearly $9,000 and 750 hours – when such classes “are not related to health and safety or what threaders actually do.”</p>
<!--break--><p>
Threading is a South Asian and Middle Eastern beautification practice whereby a person removes eyebrow hair through the skilled application of taut cotton threads tied in a small loop. Licensing requirements have recently come under scrutiny from both Democratic and Republican leaders, who claim that they unduly restrict trade and burden the poor.</p>
<p><span style="line-height: 1.3em;">In </span><em style="line-height: 1.3em;">Patel</em><span style="line-height: 1.3em;">, SCOTEX interpreted the “due course of law” provision of the Texas Constitution to protect economic liberties. This despite the court’s jurisprudence in this area having been plagued by the application of inconsistent standards. State law had recognized three applicable standards of scrutiny: the “real and substantial relation” test, the rational-basis-plus-review-of-evidence test, and the good ol’ rational basis test. </span><span style="line-height: 1.3em;">The expansive language of the Texas Due Course Clause would suggest that courts should be more skeptical of state regulations than they are under the rational basis test (which is similar to its federal counterpart in that essentially all laws survive such “scrutiny”).</span><span style="line-height: 1.3em;"> </span></p>
<p><span style="line-height: 1.3em;">And indeed here, the court adopted a more restrictive form of review – apparently yet another new standard – looking at whether “a statute’s effect as a whole is so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest.” Applying that test, the court found the cosmetology requirements had “no rational connection to reasonable safety and sanitation requirements” and invalidated the licensing scheme as it applies to hair threaders.</span></p>
<p>After enjoying the <a href="http://docs.texasappellate.com/scotx/op/12-0657/2015-06-26.johnson.pdf">majority opinion</a>, don’t overlook <a href="http://docs.texasappellate.com/scotx/op/12-0657/2015-06-26.willett.pdf">the concurrence</a> by Justice Don Willett, joined by two other colleagues on the nine-member court:</p>
<blockquote><p>This case concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread. This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments. </p></blockquote>
<p>George Will <a href="http://www.washingtonpost.com/opinions/110-years-and-still-going-strong/2015/07/10/f30bfe10-2662-11e5-aae2-6c4f59b050aa_story.html">recently praised</a> Justice Willett’s approach – favorably comparing him to Chief Justice John Roberts (a low bar, to be sure) – particularly for his treatment of <em style="line-height: 1.3em;">Lochner v. New York </em><span style="line-height: 1.3em;">(1905). Questions of substantive economic liberties always bring about discussion of that famous case, in which the U.S. Supreme Court struck down maximum-hours regulations regarding New York City bakers as an imposition on the constitutional freedom of contract. The New Deal Court effectively overruled <em>Lochner</em> in <em>W</em></span><em style="line-height: 1.3em;">est Coast Hotel v. Parrish</em><span style="line-height: 1.3em;"> (1937), paving the way for </span><em style="line-height: 1.3em;">Carolene Products v. United States </em><span style="line-height: 1.3em;">(1938), which bifurcated our rights and protected so-called fundamental rights more than others (including economic and property rights).</span></p>
<p><span style="line-height: 1.3em;">That <em>Lochner</em> was wrong is one of the few points of agreement between conservative and progressive legal scholars, both of which would rather that “unelected black-robed philosopher-kings” stop striking down the people’s laws. (Somehow, progressives have no problem with <em>Brown v. Board of Education</em>, or <em>Roe v. Wade</em>, or indeed <em>Obergefell</em>, all of which invalidated state laws – and conservatives were dismayed when the Supreme Court saved RobertsCare in <em>NFIB v. Sebelius</em>.) Chief Justice Roberts invoked <em>Lochner </em>16 times(!) in his dissenting opinion in <em>Obergefell</em>.</span></p>
<p>As Justice Willett notes, “The <em>Lochner</em> bogeyman is a mirage but a ready broadside aimed at those who apply rational basis rationally… . The Constitution<em> does </em>protect economic liberty.” To Justice Willett – the <a href="http://www.nytimes.com/2014/09/30/opinion/justice-don-willett-of-the-texas-supreme-court-lights-up-twitter.html">most Twitter-friendly jurist</a> in the land (also a low bar) – the fundamental question in <em>Patel</em> and similar cases is “one of constitutional limitations”: “Should judges blindly accept government’s health-and-safety rationale, or instead probe more deeply to ensure the aim is not suppressing competition to benefit entrenched interests?” Willett would have presumed the question in favor of individual liberty, rather than presuming the constitutionality of the statute as the majority opinion did (before rebutting that presumption) to conclude that “[t]hreaders with no license are less menacing than government with unlimited license.”</p>
<p>So kudos to IJ, to SCOTEX, and to liberty. June 26 was a great day for judicial engagement and judicial review across the land.</p>
http://www.cato.org/blog/right-earn-living-deep-heart-texasFri, 17 Jul 2015 09:55 EDTIlya Shapiro (Author at Cato Institute)Ilya Shapiro, Randal John MeyerThe Conservatarian Manifestohttp://www.cato.org/multimedia/events/conservatarian-manifesto
<p><div class="event-book"><a href="http://www.amazon.com/The-Conservatarian-Manifesto-Libertarians-Conservatives/dp/0804139725?tag=catoinstitute-20"><img src="http://www.cato.org/sites/cato.org/files/images/conservatarian-manifesto.jpg" style="height: auto; width: 130px;" ></a></div>Are libertarians and conservatives just variations of the same ideological species, or do they represent unique and separate philosophical traditions? One of <em>National Review</em>’s founding editors, Frank Meyer — father of Federalist Society president Eugene Meyer — called for a synthesis of the traditionalist and libertarian strains within the magazine’s followers. This “fusionism” animated Cold War conservatism and influenced the likes of Barry Goldwater and Ronald Reagan. Decades later, facing a very different electoral landscape, another <em>National Review</em> staffer, Charles C. W. Cooke, hopes to get the band back together again. But does the political calculus still work? Can there be a marriage of convenience when the issues that strain the would-be alliance — gay marriage, immigration, the drug war, foreign policy — are as salient to many voters as issues that would cement it? With the 2016 election season already underway, please join us for a spirited discussion of The Conservatarian Manifesto and decide for yourself whether conservatives and libertarians should work closely to advance their common goals.</p>http://www.cato.org/multimedia/events/conservatarian-manifestoTue, 14 Jul 2015 12:00 EDTIlya Shapiro (Author at Cato Institute)Trevor Burrus, Ilya ShapiroFormer Scott Walker Aide Victim of Unconstitutional E-Fishing Expeditionhttp://www.cato.org/blog/former-scott-walker-aide-victim-unconstitutional-e-fishing-expedition
<p>When Kelly Rindfleisch became a policy analyst for Scott Walker, and then his deputy chief of staff, she didn’t expect all of her personal emails to be the subject of a search into the criminal investigation of another person, but that’s Wisconsin politics for you.</p>
<p>In 2010, state officials opened a “John Doe” investigation (essentially Wisconsin’s version of a grand jury inquiry) into another Walker staffer, then-Chief of Staff Tim Russell. In their investigation, law enforcement sought and obtained a warrant for Google and Yahoo to turn over all ~16,000 emails held on Rindfleisch’s personal email account in order to find possibly incriminating emails sent between her and Russell—no narrowing, minimization, key-word searching, or independent third-party review required.</p>
<p>Through their fishing expedition, prosecutors were able to find enough evidence to support a charge against Rindfleisch, claiming that the incriminating content of those emails was in “plain view” subsequent to the incredibly broad search. Due to the unconstitutional search, Rindfleisch eventually plead guilty to misconduct in public office.</p>
<p>The Wisconsin Court of Appeals upheld the validity of the search warrants, and the Wisconsin Supreme Court declined to hear the appeal—leaving law enforcement with carte blanche to rummage through personal emails. Rindfleisch’s case provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause. That’s why Cato filed <a href="http://object.cato.org/sites/cato.org/files/pubs/pdf/rindfleisch-cert-stage-7-13-15.pdf">a brief</a>, joining the DKT Liberty Project, supporting Rindfleisch’s cert petition.</p>
<!--break--><p>
The Wisconsin courts’ decisions stand in direct conflict with many of the Supreme Court’s precedents; just last year in <em>Riley v. California</em> (2014), the Court addressed the precise privacy concerns at issue here. In <em>Riley</em>, the Court unanimously ruled that the Fourth Amendment requirement of a warrant applied to the digital contents of a locked cell phone. Now the issue has morphed to where lower courts are increasingly confronted with broad searches of all of a citizen’s electronic footprint when there is only probable cause to search a specific and identifiable subset of that information.</p>
<p>Issuing such warrants directly conflicts with the Fourth Amendment’s requirements of reasonableness and specificity. The practice of granting these warrants, particularly in the digital age, amounts to the grant of general warrants—or writs of assistance—to British officials in the colonies, the chief evil at which the Fourth Amendment was aimed.</p>
<p>The Supreme Court should take up this case and articulate meaningful requirements for specificity and reasonableness for electronic search warrants. It should invalidate the fishing expeditions that have become prevalent in political battle zones like Wisconsin.</p>
<p>The Supreme Court will decide whether to take <em>Rindfleisch v. Wisconsin</em> this fall after the justices return from their summer recess.</p>
http://www.cato.org/blog/former-scott-walker-aide-victim-unconstitutional-e-fishing-expeditionTue, 14 Jul 2015 11:22 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroRindfleisch v. Wisconsinhttp://www.cato.org/publications/legal-briefs/rindfleisch-v-wisconsin
<p>When Kelly Rindfleisch became a policy analyst for Scott Walker, and then his deputy chief of staff, she didn’t expect all of her personal emails to be the subject of a search into the criminal investigation of another person, but that’s Wisconsin politics for you. In 2010, state officials opened a “John Doe” investigation (essentially Wisconsin’s version of a grand jury inquiry) into another Walker staffer, then-Chief of Staff Tim Russell. In their investigation, law enforcement sought and obtained a warrant for Google and Yahoo to turn over all ~16,000 emails held on Rindfleisch’s personal email account in order to find possibly incriminating emails sent between her and Russell—no narrowing, minimization, key-word searching, or independent third-party review required. Through their fishing expedition, the prosecution was able to find enough evidence to support a charge against Rindfleisch, claiming that the incriminating content of those emails was in “plain view” subsequent to the incredibly broad search. Due to the unconstitutional search, Rindfleisch eventually pled guilty to misconduct in public office. The Wisconsin Court of Appeals upheld the validity of the search warrants, and the Wisconsin Supreme Court declined to hear the appeal—leaving law enforcement with carte blanche to rummage through personal emails. Rindfleisch’s case provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause. The Wisconsin courts’ decisions stand in direct conflict with many of the Supreme Court’s precedents; just last year in <em>Riley v. California</em> (2014), the Court addressed the precise privacy concerns at issue here. In <em>Riley</em>, the Court unanimously ruled that the Fourth Amendment requirement of a warrant applied to the digital contents of a locked cell phone. Now the issue has morphed to where lower courts are increasingly confronted with broad searches of all of a citizen’s electronic footprint when there is only probable cause to search a specific and identifiable subset of that information. Issuing such warrants directly conflicts with the Fourth Amendment’s requirements of reasonableness and specificity. The practice of granting these warrants, particularly in the digital age, amounts to the grant of general warrants—or writs of assistance—to British officials in the colonies, the chief evil at which the Fourth Amendment was aimed. The Supreme Court should take up this case and articulate meaningful requirements for specificity and reasonableness for electronic search warrants. It should invalidate the fishing expeditions that have become prevalent in political battle zones like Wisconsin.</p>
http://www.cato.org/publications/legal-briefs/rindfleisch-v-wisconsinMon, 13 Jul 2015 09:07 EDTIlya Shapiro (Author at Cato Institute)Lindsay C. Harrison, Julia M. Carpenter, Matthew E. Price, Elizabeth C. Bullock, Ilya ShapiroIlya Shapiro discusses the King v. Burwell ruling on CBS Radiohttp://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-king-v-burwell-ruling-cbs-radio-1
http://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-king-v-burwell-ruling-cbs-radio-1Sun, 12 Jul 2015 12:17 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroRedskins Victimized by Supreme Court License-Plate Casehttp://www.cato.org/publications/commentary/redskins-victimized-supreme-court-license-plate-case
<p>Whatever you think of the wisdom in keeping the moniker of Washington’s professional football team, it should be uncontroversial that the Redskins name and logo is protected by the <a href="https://www.law.cornell.edu/constitution/first_amendment" target="_blank">First Amendment</a>. Similarly, while I agree with South Carolina’s <a href="http://www.usatoday.com/story/news/nation/2015/07/07/south-carolina-senate-final-vote-flag/29806509/" target="_blank">imminent decision</a> to remove the Confederate battle flag from its capitol, if someone wants to drive a bright orange car with that ensign painted on top, it’s their right.</p>
<p>After all, there are only a few categories of expression that the Supreme Court has held to be <a href="http://www.firstamendmentcenter.org/faq/frequently-asked-questions-speech" target="_blank">constitutionally unprotected</a>: things like child pornography and incitement of violence. “Offensive” speech — however defined and whoever decides — isn’t on that list.</p>
<p>And yet, when federal district judge Gerald Bruce Lee <a href="http://apps.washingtonpost.com/g/page/local/judges-ruling-on-redskins-trademark/1750/" target="_blank">ordered</a> that the Redskins’ trademark registrations be canceled — because they “<a href="http://apps.washingtonpost.com/g/page/local/judges-ruling-on-redskins-trademark/1750/" target="_blank">may disparage</a>” Native Americans — he badly misinterpreted the scope of constitutional speech protections. Judge Lee mistakenly found that the federal government doesn’t have to protect the First amendment under the federal <a href="https://www.law.cornell.edu/wex/lanham_act" target="_blank">trademark statute</a> and that registering a trademark constitutes government speech.</p>
<blockquote class="pullquote right">
<p class="pq-quote"><span class="open-quote">“</span><span class="pq-body">Reasonable people disagree about how best to structure intellectual property law, but it’s bizarre to think that every trademark, copyright and patent represents government expression.”</span></p>
</blockquote>
<p>Judge Lee followed the lead of a flawed Supreme Court ruling <a href="http://www.supremecourt.gov/opinions/14pdf/14-144_758b.pdf" target="_blank">ratifying</a> the power of the Department of Motor Vehicles — of all government agencies — to police speech it considers “offensive.” The Washington Redskins are thus the first unintended casualty of <em>Walker v. Texas Division</em>, last month’s “Confederate license-plate case.”</p>
<p>In Walker, a <a href="http://www.supremecourt.gov/opinions/14pdf/14-144_758b.pdf" target="_blank">five-justice majority</a> ruled that the specialty plates Texas drivers can choose for their vehicles constitute state speech — and the state can control its own messages, including rejecting a proposed Sons of Confederate Veterans tag. This is so even though the license-plate program allows Texans to make their own designs, which has resulted in hundreds of plates expressing support for myriad nonprofits, businesses, and affinity groups.</p>
<p>By that logic, Texas has long endorsed Dr. Pepper, Re/Max and an assortment of burger joints. Both Longhorns and Aggies must have been dismayed that the Lone Star State had been officially cheering for the Oklahoma Sooners.</p>
<p>The ruling represents a fundamental misunderstanding: Texas doesn’t have to have specialty plates, but if it creates this money-making program, it can’t then censor speech it doesn’t like.</p>
<p>The same thing is at play with the Redskins: Reasonable people disagree about how best to structure intellectual property law, but it’s bizarre to think that every trademark, copyright and patent represents government expression. To hold otherwise is to imagine that I first learned of the Redskins ruling through a government-endorsed “<em>Washington Post”</em> article appearing in my government endorsed “Facebook” feed that I was checking on my government-endorsed “iPhone.”</p>
<p>And assuming trademarks aren’t the government’s own speech, why should the feds get to restrict marks just because someone somewhere might be offended by them? The very reason that the First Amendment offers such broad protections is that one man’s offensive speech is another’s exercise of social commentary or personal expression.</p>
<p>Alas, Walker’s nefarious new doctrine has claimed its first victim — though the Redskins ruling will now be appealed.</p>
<p>In the meantime, the team should keep its name but change its logo to a red bliss potato. Let the G-Men figure that one out.</p>
http://www.cato.org/publications/commentary/redskins-victimized-supreme-court-license-plate-caseThu, 09 Jul 2015 14:49 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroIn the Wake of King v. Burwell: Options for Congresshttp://www.cato.org/multimedia/events/wake-king-v-burwell-options-congress
<p>The Supreme Court’s decision on <em>King v. Burwell</em> validated President Obama’s massive power grab, allowing him to tax, borrow, and spend $700 billion without congressional approval. This establishes a precedent that could let any president modify, amend, or suspend any enacted law at his or her whim.</p>
<p>As it stands, Obamacare will continue to disrupt coverage for sick Americans until Congress repeals it and replaces it with reforms that make health care better, more affordable, and more secure. Despite the ruling, Obamacare remains unpopular with the American public and the battle to set in place a health care system that works for all Americans is far from over.</p>
<p>Come hear leading scholars discuss the impact of <em>King v. Burwell</em> on health care reform, separation of powers, and the rule of law.</p>
http://www.cato.org/multimedia/events/wake-king-v-burwell-options-congressThu, 09 Jul 2015 12:00 EDTIlya Shapiro (Author at Cato Institute)Michael F. Cannon, Ilya ShapiroThe Labor Case That Could Lead to Educational Freedomhttp://www.cato.org/publications/commentary/labor-case-could-lead-educational-freedom
<p>As the nation debates the implications of the latest round of Supreme Court decisions, the court is already preparing a new slate for next term. Among the many cases on the docket, one stands out for its potential to eliminate a longstanding violation of citizens’ First Amendment rights and pave the way for education reform.</p>
<p>In <em>Friedrichs v. California Teachers Association</em>, the Supreme Court will consider the constitutionality of state laws that compel public-sector workers to financially support unions. Ten California teachers argue that the state’s “agency shop” law — which forces them to pay either union dues of about $1,000 per year or “agency fees” of about two-thirds that amount — violates their First Amendment rights.</p>
<p>Unions have long argued that the government must compel workers to join unions to prevent nonmembers from freeriding on the supposed benefits from their collective bargaining. In the 1977 case of <em>Abood v. Detroit Board of Education</em>, the Supreme Court ruled that states could only force nonunion members to cover the costs of collective bargaining, but not “to contribute to the support of an ideological cause [they] may oppose as a condition of holding a job.”</p>
<blockquote class="pullquote right">
<p class="pq-quote"><span class="open-quote">“</span><span class="pq-body">As the Supreme Court has held countless times, the freedom of speech includes the right not to support someone else’s speech.”</span></p>
</blockquote>
<p>In the spirit of <em>Abood</em>, California and 25 other states compel nonmembers to pay fees to cover the costs of public-sector unions’ collective-bargaining activities, but not the costs of their explicitly political spending. But as the Friedrichs plaintiffs point out, public-sector collective bargaining is inherently political because it aims to influence government policies.</p>
<p>The Supreme Court appears inclined to agree. Last year, the court ruled in <em>Harris v. Quinn</em> that publicly subsidized home healthcare workers — which often include relatives of the elderly or infirm — couldn’t be compelled to join a union. In the process, the court’s majority questioned the logic of <em>Abood</em>, noting that in the public sector, “core issues such as wages, pensions, and benefits are important political issues.” Every dollar a city spends on teacher pensions is a dollar it doesn’t spend on parks or police. Whether through TV ads or across the negotiating table, efforts to influence government policies on such issues constitute political speech.</p>
<p>Agency-shop laws force people to financially support political views with which they disagree or lose their jobs, an obvious First Amendment problem. As the Supreme Court has held countless times, the freedom of speech includes the right not to support someone else’s speech. Unions shouldn’t be able to force nonmembers to finance their activities just because the union thinks they’ll benefit. As the court noted in Harris, “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.”</p>
<p>The end of compulsory agency fees in the public sector could have a tremendous impact on public policy, particularly in the realm of education. Deep-pocketed teachers unions are among the most formidable obstacles to education reform. In the 2014 election cycle alone, the National Education Association and American Federation of Teachers spent a combined <a target="_blank" href="http://www.edweek.org/ew/articles/2014/10/21/10campaignfinance.h34.html">$60 million</a> on contributions to politicians and outside advocacy groups in addition to the undisclosed amount they spent on lobbying.</p>
<p>Although more than a dozen states adopted new or expanded school-choice programs so far this year, teachers unions have played a key role in blocking several promising initiatives. In New York, the largest teachers union <a target="_blank" href="http://nyceducator.com/2015/06/victory-nysut-and-uft-style.html">took credit</a> for defeating Governor Cuomo’s proposed Parental Choice in Education Act, which passed the state senate and had the declared support of a majority of state assemblymen. Nevertheless, the union’s allies in the assembly speaker’s office made sure the bill never received an up-or-down vote. The unions also successfully blocked similar legislation in Texas despite the support of the governor and state senate, as well as programs in Colorado, Oklahoma, Montana, Virginia and elsewhere.</p>
<p>Moreover, a recent survey by Harvard University’s Program on Education Policy and Governance found that six in ten Americans support tax-credit scholarship laws like those proposed in New York and Texas, including nearly four in ten teachers. Sadly, those teachers are forced to pay the unions to work against their preferred policies — that is, until the Supreme Court rules otherwise.</p>
http://www.cato.org/publications/commentary/labor-case-could-lead-educational-freedomThu, 09 Jul 2015 10:32 EDTIlya Shapiro (Author at Cato Institute)Jason Bedrick, Ilya ShapiroUnited States v. Batatohttp://www.cato.org/publications/legal-briefs/united-states-v-batato
<p>Megaupload.com was once the 13th most popular website on the internet, with more than 82 million unique visitors and a billion total page views during its seven-year operation. The site allowed people to store files on the cloud for later use — and some users inevitably stored copyrighted TV shows, films, songs, and software. In 2012, the U.S. government charged the owner, Kim Dotcom, and the website’s operators with conspiracy to commit copyright infringement. The defendants are currently resisting extradition to the United States (Dotcom lives in New Zealand), as is their right under extradition treaties. In 2014, the seemingly frustrated government moved to seize the defendants’ considerable assets in a civil forfeiture action, claiming that the assets are probably connected to the alleged criminal activity. Under civil forfeiture laws, the government can take property without an underlying criminal conviction based only on the allegation of a crime. Those whose property has been seized can get it back by proving that their <em>property</em> is “innocent.” The government, however, is preventing the defendants from even making that argument. Using the “fugitive disentitlement” doctrine, the government is blocking the defendants from challenging the forfeiture. Fugitive disentitlement has historically been applied only to criminals who escaped custody while appealing a conviction, the idea being that a court could decide to dismiss the appeal because any judgment would be unenforceable against an absent defendant. Here, the government has decided that, because the Megaupload defendants aren’t coming to the United States to defend their property, they are “fugitives” who have lost the ability to defend against that seizure — and the district court agreed. Cato, joined by the Institute for Justice and the National Association of Criminal Defense Lawyers, has filed a brief in the U.S. Court of Appeals for the Fourth Circuit arguing that it’s unconstitutional for the government to use fugitive disentitlement in civil forfeiture proceedings against non-fugitives. The Fifth Amendment’s Due Process Clause requires an opportunity to be heard and an opportunity to defend against government-initiated actions against your property. Unlike an escaped criminal appellant who is scorning the court’s jurisdiction, in civil forfeiture, it’s the government that has dragged Dotcom and the others into court. Moreover, given the amount of <a href="https://www.youtube.com/watch?v=3kEpZWGgJks" target="_blank">abuse</a> in civil-asset forfeiture, the government shouldn’t be allowed both to profit from the forfeiture and suppress defenses by calling residents of other countries “fugitives.” Finally, the reasons for fugitive disentitlement in criminal appeals simply can’t be transferred to civil-asset forfeiture. When an individual is “on the run” from criminal prosecution, courts can’t enforce judgements against them, but a valid forfeiture order would be fully enforceable against Dotcom if the court has jurisdiction over the property. Fugitive disentitlement is also used to deter felons from escaping justice, but there’s no similar concern here, where the property can’t run away and the claimants are merely residing in their home countries. The Fourth Circuit should not only allow the Megaupload defendants to challenge the seizure, it should also consider striking down as unconstitutional all uses of fugitive disentitlement in civil-forfeiture cases.</p>http://www.cato.org/publications/legal-briefs/united-states-v-batatoWed, 08 Jul 2015 17:00 EDTIlya Shapiro (Author at Cato Institute)Ilya Shapiro, Trevor Burrus, Darpana Sheth, Thomas K. MaherJustice Kennedy Was Right for the Wrong Reasonshttp://www.cato.org/publications/commentary/justice-kennedy-was-right-wrong-reasons
<p>This U.S. Supreme Court term will be most remembered for its penultimate day, when same-sex marriage became the law of the land in the case of <em>Obergefell v. Hodges</em>. Just because that ruling was expected — the court never gets too far ahead or behind public opinion — doesn’t make it any less momentous.</p>
<p>Still, about the only good thing that can be said about Justice Anthony Kennedy’s opinion for the five-justice majority is that he (somehow) arrived at the correct result. I’ve reread the ruling several times and come to the conclusion that it’s simply not a judicial opinion. What should’ve been a very easy case about equality under the law became a purple disquisition on … I’m not sure what, really.</p>
<p>Kennedy clearly tried to write for the ages, but rather than making an epochal statement about the equality of gay and lesbian Americans, he produced a meditation on how the Constitution protects “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” He found this “liberty” in the Fourteenth Amendment, that much is clear, but in the form of a judicial recipe whereby you take a scoop of the Due Process Clause and a cup of the Equal Protection Clause, shake them together, sprinkle some “dignity” on top, and viola!</p>
<p>That’s not law.</p>
<blockquote class="pullquote right">
<p class="pq-quote"><span class="open-quote">“</span><span class="pq-body">Instead, it’s the Equal Protection Clause that says that the government can’t treat people differently for no good reason.”</span></p>
</blockquote>
<p>For one thing, the Due Process Clause should have nothing to do with this case. The problem isn’t that “substantive due process” is a misnomer, as many conservatives would have it. The right to “due process of law” means that the government can’t take away your life, liberty or property for no good reason. A duly appointed kangaroo court that punctiliously observes the letter of a sham law — one of those Stalin-era show trials, say — still violates your <em>substantive</em> right to be prosecuted only in a <em>fair</em> way under a <em>real</em> law.</p>
<p>Instead, it’s the Equal Protection Clause that says that the government can’t treat people differently for no good reason. While the Due Process and Equal Protection Clauses can overlap — to be discriminated against for no good reason can be a sort of arbitrary rule-of-man state action — they often don’t, because the government discrimination might concern something that’s not life, liberty or property.</p>
<p>Such is the case here: There’s no <em>right</em> to the state recognition or licensing of marriage. Marriage — the civil institution, not the religious rite or metaphysical state of being — is a kind of government benefit or legal regime. In other words, marriage is not one of the basic, inherent, inalienable rights all human beings have at birth, such as the right to speak freely, to exercise religion, to earn an honest living, to defend oneself, to own the fruits of one’s labors, etc. </p>
<p>To put it in the context of injustices perpetrated against gay people, marriage is not like the right to privacy or cohabitation, or to have sex with a consenting partner. <em>Obergefell</em> was thus not like <em>Lawrence v. Texas</em>, which struck down a law that <em>criminalized</em> homosexual sodomy, or even like <em>Loving v. Virginia</em>, which banned, again under penalty of criminal law, the interracial “cohabiting as man and wife, against the peace and dignity of the Commonwealth.”</p>
<p>Justice Clarence Thomas was correct to point this out in his dissent, which easily poked holes in Justice Kennedy’s flim-flam: “In the American legal tradition, liberty has long been understood as individual freedom <em>from</em> government action, not as a right <em>to</em> a particular governmental entitlement.” After all, a logical extension of Kennedy’s understanding of the fundamental right to marriage is that states are constitutionally prohibited from getting out of the marriage-licensing business altogether. That can’t be right.</p>
<p>Moreover, Kennedy filled his opinion with verbiage about how marriage “has promised nobility and dignity to all persons,” that denying this to civic sacrament to same-sex couples would “disparage their choices and diminish their personhood” and “impose[s] stigma.” Of course, as Chief Justice John Roberts noted in his dissent, there is no Nobility and Dignity Clause, so we have to translate Kennedy’s hand-waving into an observation that the government <em>demeans</em> same-sex couples by treating them differently from opposite-sex couples for no good reason. That’s an obvious equal-protection claim.</p>
<p>Now, Kennedy did address the arguments for maintaining restrictions on civil marriage — explaining that same-sex marriages won’t harm opposite-sex couples or their children, and indeed helps the children of same-sex couples — but only in passing rather than as the central refutation of the states’ asserted regulatory interest. I’m less bothered than some that he refused to employ the legalistic rubric regarding levels of scrutiny — that’s just jurisprudential artifice — but its absence means that there’s even less recognizable “law” to this landmark opinion.</p>
<p>As Timothy Sandefur put it on his indispensable Freespace blog: “A proper decision would have regarded this as an Equal Protection, not as a Due Process of Law matter; would have acknowledged that recognition of marriage is a government benefit that may not be withheld without good reason, and that there is no good reason … and call[ed] it a day.”</p>
<p>In the end, this will be a case that is studied for generations, the culmination of both a remarkably quick transformation of both public opinion and an unusual course of litigation. It’s hard to believe that it took only 12 years to get from <em>Lawrence </em>— which also came the year that the Massachusetts high court became the first in the nation to legalize same-sex marriage — to <em>Obergefell</em>.</p>
<p>Good for the Supreme Court — and I echo Justice Kennedy’s hope that both sides now respect each other’s liberties and recognize that we live in a pluralistic society — but the actual ruling that got us there could’ve been so much more.</p>
http://www.cato.org/publications/commentary/justice-kennedy-was-right-wrong-reasonsWed, 08 Jul 2015 10:08 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroIlya Shapiro discusses polygamy in light of the Obergefell v. Hodges ruling on WCGO's The Federalist Radio Hourhttp://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-polygamy-light-obergefell-v-hodges-ruling
http://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-polygamy-light-obergefell-v-hodges-rulingTue, 07 Jul 2015 12:47 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroIlya Shapiro discusses the recent SCOTUS rulings on Liberty Talk Radio with Joe Cristianohttp://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-recent-scotus-rulings-liberty-talk-radio
http://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-recent-scotus-rulings-liberty-talk-radioMon, 06 Jul 2015 14:46 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroIlya Shapiro discusses Friedrichs v. California Teachers Association on WSJ Livehttp://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-friedrichs-v-california-teachers-association
http://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-friedrichs-v-california-teachers-associationMon, 06 Jul 2015 13:25 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroGovernment Forces Rock Solid Church Into a Hard Placehttp://www.cato.org/blog/government-forces-rock-solid-church-hard-place
<p>The Fifth Amendment prohibits the taking of private property for public use without just compensation. Still, Congress, regulatory agencies, and even the Supreme Court have each played their part in making receipt of just compensation practically impossible in certain scenarios.</p>
<p>Ministerio Roca Solida, a Nevada church, is one victim of this injustice. It owns a 40-acre parcel in Nevada’s Amargosa Valley entirely surrounded by a federally managed wildlife refuge. It uses this parcel for religious purposes; until an illegal intervention by the U.S. Fish and Wildlife Department, it performed baptisms in a spring-fed stream on the land.</p>
<p>In 2010, the government rerouted the stream to a higher elevation entirely outside of Roca Solida’s property; later that year, rainfall caused the stream to overflow its channel, flooding Roca Solida’s property and causing damage to its facilities. After making a statutorily mandated claim with the Department of the Interior and receiving no response, Roca Solida filed a lawsuit, seeking various kinds of relief for constitutional violations, the negligent waterway rerouting/flooding, and the taking of its stream.</p>
<p>Courtesy of Congress, Roca Solida was forced to split its claims between two different courts: district courts have exclusive jurisdiction over tort claims against the government, while the Court of Federal Claims has exclusive jurisdiction over monetary claims in excess of $10,000. The Supreme Court addressed the constitutional implications of this jurisdictional arrangement most recently in <em>United States v. Tohono O’Odham Nation</em> (2011), holding that a Civil War-era statute (28 U.S.C. § 1500) bars plaintiffs from pursuing monetary claims in the CFC while any other claims with “substantial overlap in operative facts” are pending in district court. Relying on <em>Tohono</em>, the CFC dismissed Roca Solida’s takings claim. The U.S. Court of Appeals for the Federal Circuit affirmed—though in concurrence, Judge Taranto noted that <em>Tohono</em>’s “application of § 1500 may soon present a substantial constitutional question about whether federal statutes have deprived Roca Solida of a judicial forum to secure just compensation for a taking.”</p>
<!--break--><p>With the six-year statute of limitations for its taking claim set to expire in August 2016 and no end in sight to the ongoing district court litigation, Roca Solida has effectively been forced to choose among its claims. The church has petitioned the Supreme Court to overturn its ruling in <em>Tohono</em>, arguing that the case’s application here violates its constitutional rights.</p>
<p>Cato has joined the National Association of Reversionary Property Owners on an <a href="http://object.cato.org/sites/cato.org/files/pubs/pdf/ministerio-roca-solida.pdf">amicus brief</a> supporting that petition and asking the Court to clarify that its holding in <em>Tonoho </em>does not (and cannot) allow § 1500 to bar owners from vindicating their right to just compensation. We challenge the Court to confront the fact that <em>Tohono</em> has caused federal law to prevent Roca Solida from vindicating its Fifth Amendment claims.</p>
<p>While § 1500 was never intended to be a tool of the state, the Court’s ruling effectively turned a blind eye to the government’s routine reliance on such jurisdictional statutes to deny takings victims’ meritorious claims. The Court cannot simply defer to Congress to correct § 1500, as its own decision in <em>Tohono</em> is the legal linchpin responsible for the lower court’s dismissal of Roca Solida’s CFC claim. In order for Roca Solida to receive complete relief for the multiple wrongs it suffered, the Court must revisit <em>Tohono</em> and at least restrict § 1500’s ambit to exclude constitutional claims. No plaintiff should be forced by the three branches of government to “forgo one constitutional right to vindicate another.”</p>
<p>The Supreme Court will consider whether to take up <em>Ministerio Roca Solida v. United States</em> when it returns from its summer recess.</p>
http://www.cato.org/blog/government-forces-rock-solid-church-hard-placeThu, 02 Jul 2015 10:10 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroGay Marriage Is Here - Now What?http://www.cato.org/blog/gay-marriage-here-now-what
<div>
<p>That’s the title of a <a href="http://thefederalist.com/2015/06/27/gay-marriage-is-here-now-what/">symposium</a> that the <em>Federalist</em> published after the <em>Obergefell </em>ruling. It included mini-opeds from a range of people on both sides of the debate, including Newt Gingrich and Mike Lee. Here was my contribution:</p>
<blockquote><p>Just because today’s opinion was expected by nearly everyone doesn’t make it any less momentous. In sometimes-soaring rhetoric Kennedy explains that the Fourteenth Amendment’s guarantee of both substantive liberty and equality means there is no further valid reason to deny this particular institution, the benefit of these particular laws, to gay and lesbian couples. Okay, fair enough: there’s a constitutional right for gay and lesbian couples to get marriage licenses—at least so long as everyone else gets them. (We’ll set aside the question of why the government is involved in marriage in the first place for a later time.)</p></blockquote>
</div>
<blockquote><div>
<div><span style="line-height: 1.3em;">But where do we go from here? What about people who disagree, in good faith, with no ill intent towards gay people? Will ministers, to the extent they play a dual role in ratifying marriage licenses, have to officiate big gay weddings? Will bakers and photographers have to work them? What about employment-discrimination protections based on sexual orientation—most states lack them, but are they now required? And what about tax-exempt status for religious schools, the issue that came up during oral argument?</span></div>
</div>
<div>
<p>It’s unclear to be honest—much depends on whether Anthony Kennedy remains on the court to answer these thorny questions in his own hand-waving way—but all of these examples, including marriage licensing itself, show the folly inherent in government insinuation into the sea of liberty upon which we’re supposed to sail our ship of life. (Justice Kennedy, you can use that one next time; no need even to cite me.)</p>
</div>
<div>
<p>If government didn’t get involved in regulating private relationships between consenting adults—whether sexual, economic, political, athletic, educational, or anything else—we wouldn’t be in that second-best world of adjudicating competing rights claims. If we maintained that broad public non-governmental sphere, as distinct from both the private home and state action, then we could let a thousand flowers bloom and each person would be free to choose a little platoon with which to associate.</p>
</div>
<div>
<p>But the extent to which we live in that world is <a href="http://object.cato.org/sites/cato.org/files/articles/hobby_lobby_for_natl_affairs_28published28.pdf">decreasing at a horrendous pace</a>, and so we’re forced to fight for carve-outs of liberty amidst the sea of mandates, regulations, and other authoritarian “nudges.”</p>
</div>
</blockquote>
<div>
<blockquote><p>In any event, good for the court today—and I echo Justice Kennedy’s hope that both sides will now respect each other’s liberties and the rule of law. But I stand ready to defend anybody’s right to offend or otherwise live his or her life (or run his or her business) in ways I might not approve.</p></blockquote>
<p>You can read the other entries <a href="http://thefederalist.com/2015/06/27/gay-marriage-is-here-now-what/">here</a>, and also see Jason Kuznicki’s <a href="http://www.cato.org/blog/marriage-policy-mess-heres-how-make-sense-it">longer post</a> on the future of “marriage policy” and Roger Pilon’s <a href="http://www.cato.org/publications/commentary/has-freedom-association-become-crime">prescient piece</a> from a few months ago.</p>
</div>
http://www.cato.org/blog/gay-marriage-here-now-whatThu, 02 Jul 2015 08:53 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroMinisterio Roca Solida v. United Stateshttp://www.cato.org/publications/legal-briefs/ministerio-roca-solida-v-united-states
<p>The Fifth Amendment prohibits the taking of private property for public use without just compensation. Still, Congress, regulatory agencies, and even the Supreme Court have each played their part in making receipt of just compensation practically impossible in certain scenarios. Ministerio Roca Solida, a Nevada church, is one victim of this injustice. It owns a 40-acre parcel in Nevada’s Amargosa Valley entirely surrounded by a federally managed wildlife refuge. It uses this parcel for religious purposes; until an illegal intervention by the U.S. Fish and Wildlife Department, it performed baptisms in a spring-fed stream on the land. In 2010, the government rerouted the stream to a higher elevation entirely outside of Roca Solida’s property; later that year, rainfall caused the stream to overflow its channel, flooding Roca Solida’s property and causing damage to its facilities. After making a statutorily mandated claim with the Department of the Interior and receiving no response, Roca Solida filed a lawsuit, seeking various kinds of relief for constitutional violations, the negligent waterway rerouting/flooding, and the taking of its stream. Courtesy of Congress, Roca Solida was forced to split its claims between two different courts: district courts have exclusive jurisdiction over tort claims against the government, while the Court of Federal Claims has exclusive jurisdiction over monetary claims in excess of $10,000. The Supreme Court addressed the constitutional implications of this jurisdictional arrangement most recently in <em>United States v. Tohono O’Odham Nation</em> (2011), holding that a Civil War-era statute (28 U.S.C. § 1500) bars plaintiffs from pursuing monetary claims in the CFC while any other claims with “substantial overlap in operative facts” are pending in district court. Relying on <em>Tohono</em>, the CFC dismissed Roca Solida’s takings claim. The U.S. Court of Appeals for the Federal Circuit affirmed—though in concurrence, Judge Taranto noted that <em>Tohono</em>’s “application of § 1500 may soon present a substantial constitutional question about whether federal statutes have deprived Roca Solida of a judicial forum to secure just compensation for a taking.” With the six-year statute of limitations for its taking claim set to expire in August 2016 and no end in sight to the ongoing district court litigation, Roca Solida has effectively been forced to choose among its claims. The church has petitioned the Supreme Court to overturn its ruling in <em>Tohono</em>, arguing that the case’s application here violates its constitutional rights. Cato has joined the National Association of Reversionary Property Owners on an amicus brief supporting that petition and asking the Court to clarify that its holding in <em>Tonoho </em>does not (and cannot) allow § 1500 to bar owners from vindicating their right to just compensation. We challenge the Court to confront the fact that <em>Tohono</em> has caused federal law to prevent Roca Solida from vindicating its Fifth Amendment claims. While § 1500 was never intended to be a tool of the state, the Court’s ruling effectively turned a blind eye to the government’s routine reliance on such jurisdictional statutes to deny takings victims’ meritorious claims. The Court cannot simply defer to Congress to correct § 1500, as its own decision in <em>Tohono</em> is the legal linchpin responsible for the lower court’s dismissal of Roca Solida’s CFC claim. In order for Roca Solida to receive complete relief for the multiple wrongs it suffered, the Court must revisit <em>Tohono</em> and at least restrict § 1500’s ambit to exclude constitutional claims. No plaintiff should be forced by the three branches of government to “forgo one constitutional right to vindicate another.”</p>
http://www.cato.org/publications/legal-briefs/ministerio-roca-solida-v-united-statesWed, 01 Jul 2015 08:32 EDTIlya Shapiro (Author at Cato Institute)Mark F. Hearne, Stephen S. Davis, Ilya ShapiroCato Continues Win Streak at Supreme Court, Government Does Abysmally Yet Againhttp://www.cato.org/blog/cato-continues-win-streak-supreme-court-government-does-abysmally-yet-again
<p>After several blockbuster terms, this year was supposed to give a bit of a breather to Supreme Court watchers – but of course all that changed in November, when RobertsCare and same-sex marriage landed back on the justices’ laps. Looking back on the term, we see a few trends: fewer unanimous rulings than the last few years; more results that experts classify as “liberal” than “conservative” (though that’s a function of the vagaries of the docket); the lockstep voting of the liberal bloc contrasted against the inscrutability of Chief Justice Roberts and Justice Kennedy.</p>
<p>But despite the highs and lows of the last few decision days, when the dust cleared, there was one aspect of continuity that’s particularly gratifying to me: Cato continued its winning streak in cases in which we filed amicus briefs. While not as dominating as <a href="http://www.cato.org/blog/cato-went-10-1-supreme-court-term">last term</a>, we still managed to pull off an 8-7 record. I’m also proud to note that we were the only organization in the country to support the challenges to both the IRS rule on the ACA and state marriage laws.</p>
<p>Here’s the breakdown, in the order the opinions arrived:</p>
<p><strong>Winning side (8):</strong> <em>North Carolina Board of Dental Examiners v. FTC</em>; <em>Yates v. United States</em>; <em>Elonis v. United States</em>; <em>City of Los Angeles v. Patel</em>; <em>Horne v. U.S. Dept. of Agriculture</em>; <em>Johnson v. United States</em>; <em>Obergefell v. Hodges</em>; <em>Michigan v. EPA</em>.</p>
<p><strong>Losing side (7):</strong> <em>Heien v. North Carolina</em>; <em>Perez v. Mortgage Bankers Assoc.</em>; <em>U.S. Dept. of Transportation v. Assoc. of American Railroads</em>; <em>EEOC v. Abercrombie & Fitch</em>; <em>Walker v. Sons of Confederate Veterans</em>; <em>Texas Dept. of Housing v. Inclusive Communities Project</em>; <em>King v. Burwell</em></p>
<!--break--><p>So it was a decent year for liberty, but obviously not without its disappointments – even beyond <em>King v. Burwell</em>. Still, we fared way better than the U.S. government, which compiled a 9.5-12.5 record (I split one case that was partially affirmed/reversed, which is more generous than some pundits). Curiously, for the first time ever, both Cato and the feds found ourselves on the winning side of one case: <em>North Carolina Dental Examiners</em> – but that was against a state government, so some Leviathan had to lose there.</p>
<p>UCLA law professor Adam Winkler, <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2015/06/supreme_court_liberal_on_criminal_justice_issues_clarence_thomas_sided_with.html">writing at <em>Slate</em></a>, attributes the government’s poor performance to its “conservative” positions on criminal justice. I don’t buy the ideological characterization – Justice Scalia often votes against the prosecution, so does that mean he’s a “liberal,” in contrast to “law-and-order conservative” Justice Kagan? – but the analysis is correct: many of the government losses, including a couple of unanimous ones, were in criminal cases. (Overcriminalization, anyone?)</p>
<p>But regardless – and regardless of its two victories on RobertsCare – this administration is easily the <a href="http://fivethirtyeight.com/datalab/despite-this-weeks-victories-obama-has-struggled-at-the-supreme-court/">worst performer</a> of any president before the Court in modern times (and probably ever, though it’s more relevant to compare Obama to Bush, Reagan, and Kennedy than, say, Benjamin Harrison). There are three basic reasons for this: expansive executive action (including overzealous prosecution), envelope-pushing legal theories, and Justice Kennedy acting like a libertarian on close cases.</p>
<p>I’m sure I’ll have more to say on this in future commentary, but if you’d like to learn more about all these cases/trends and the views of Cato-friendly scholars and lawyers, register for our <a href="http://www.cato.org/events/14th-annual-constitution-day">14th Annual Constitution Day Symposium</a>, which will be held September 17 to review the term and look ahead to next year. That’s also when we’ll be releasing the latest volume of the <a href="http://www.cato.org/supreme-court-review"><em>Cato Supreme Court Review</em></a>, the editing of which will consume much of my summer.</p>
http://www.cato.org/blog/cato-continues-win-streak-supreme-court-government-does-abysmally-yet-againWed, 01 Jul 2015 08:29 EDTIlya Shapiro (Author at Cato Institute)Ilya ShapiroKennedy the Swing, Roberts Back on Reservation, Scalia Is Scaliahttp://www.cato.org/blog/kennedy-swing-roberts-back-reservation-scalia-scalia
<p>This morning I was on the steps of the Supreme Court, as I have been each of the decision days starting last Monday. It’s a real spectacle, with protestors and counter-protestors, interns running from the Court’s press office to give their media principals slip opinions, and phalanxes of TV cameras, bright lights, screens, and assorted technical accoutrements. For someone whose job includes digesting and commenting on legal opinions, this last week of the high court’s term is pretty much the Super Bowl.</p>
<p>Except today didn’t feel that way. After Obamacare on Thursday and same-sex marriage on Friday, today was the most anticlimactic “last day of school” since I’ve begun doing this.</p>
<p>That’s not to say that the three cases decided today were unimportant, either legally or politically. Indeed, until the Court took up <em>King v. Burwell</em> and <em>Obergefell v. Hodges</em>, each of them would’ve been considered among the “big ones” for what was, to that point, a low-key term. After all, we’re talking about the death penalty, redistricting, and major environmental regulations. (And also the Court announced that it will again take up <em>Fisher v. UT-Austin</em>, the <a href="http://www.cato.org/blog/ut-austins-secret-racial-preferences-undermine-its-admissions-policy">racial-preferences case</a> that is set to become one of next term’s blockbusters.)</p>
<p>Let’s take the cases in the order they came:</p>
<!--break--><ol>
<li>In <a href="http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf"><em>Glossip v. Gross</em></a>, the Court rejected a challenge to one of the drugs used by Oklahoma in administering lethal injections, arguing that its use violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.” Justice Alito wrote a fairly technical opinion for the 5-justice majority based on two grounds: (1) the death-row inmates failed to identify an alternative method of execution that entails a lesser risk of pain; and (2) the district court didn’t clearly err in finding that they hadn’t established that the challenged drug was ineffective in rendering the executee unable to feel pain. Standard stuff, with which the four liberal justices – acting in lockstep as they always do in big cases – disagreed. But then Justice Breyer, joined by Justice Ginsburg alone, took issue with the constitutionality of the death penalty altogether, to which Justices Scalia and Thomas each wrote rejoinders. “Welcome to Groundhog Day,” Scalia begins before stating that Breyer’s opinion is “full of internal contradictions and (it must be said) gobbledy-gook” and concluding that Breyer “does not just reject the death penalty, he rejects the Enlightenment.” Suffice it to say, read the <a href="http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf">whole thing</a>.</li>
<li>Next, in <a href="http://www.supremecourt.gov/opinions/14pdf/13-1314_kjfl.pdf"><em>Arizona State Legislature v. Arizona Independent Redistricting Commission</em></a>, the Court rejected a challenge to an Arizona voter initiative that, to combat political gerrymandering, took the redistricting process out of the state legislature and gave it to a new (and supposedly independent) commission. The lawsuit claimed that this independent commission violated the U.S. Constitution’s Elections Clause, which gives authority to regulate the times, places, and manner, of congressional elections to the “Legislature” of each state. Justice Ginsburg, again for a 5-justice majority, found that the law-making power was shared by the people and the legislature. Chief Justice Roberts authored the principal dissent and noted on its first page that the majority’s position “has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.” Well, then: tell us what you really think! Justices Scalia and Thomas then each dissent (and join each other’s opinions) to take issue with the legislature’s standing to bring this case in the first – a pair of opinions that will be studied thoroughly given the increasing inter-branch lawsuits being brought at both the state and federal levels.</li>
<li>Finally, in <a href="http://www.supremecourt.gov/opinions/14pdf/14-46_10n2.pdf"><em>Michigan v. EPA</em></a>, Justice Scalia gets to write a majority opinion (as he did on Friday, it must be said – in the Armed Career Criminal Act case that was eclipsed by <em>Obergefell</em>). Put simply, the EPA cannot impose billions of dollars of regulatory costs on energy production without considering those costs <em>at all</em> in deciding whether to promulgate the challenged rule. This ruling stops the Obama climate-change regulatory agenda in its tracks, as my colleague Andrew Grossman describes more fully in a just-posted <a href="http://www.cato.org/blog/does-epas-supreme-court-loss-doom-obamas-climate-agenda">statement</a>. The four liberals, through the witty pen of Justice Kagan, dissent. More interestingly, Justice Thomas writes a separate concurring opinion to question the wisdom of <em>Chevron</em> deference – deferring to agency interpretations of statutes – which <a href="http://theweek.com/articles/563546">dovetails with the one small silver lining</a> of Chief Justice Roberts’s <em>King</em> opinion.</li>
</ol>
<p>In short, even if the last day of term was overshadowed by its penultimate days, it still produced high drama: each of the three rulings split on 5-4 lines with Justice Kennedy as the swing vote, and each produced memorable concurrences/dissents, particularly by Justice Scalia. </p>
<p>That also means that Chief Justice Roberts, as he did on marriage and disparate-impact in housing – the “undercard” to <em>King</em> on Thursday – returned to the conservative fold. (Those who think that John Roberts is “liberal” or has “evolved” while on the bench, like Justice David Souter and other Republican appointees, are <a href="http://time.com/3937366/john-roberts-obamacare/">simply wrong</a>.)</p>
<p>Finally, the ruling in the EPA case clinched a winning record for Cato in briefs we filed in merits cases this term. We went 8-7, which is down from the previous two years but still a heckuva lot better than the government, which went 9.5-12.5 (it won part of one complicated case). In other words, even if the term will be remembered for <em>King v. Burwell</em> – and <em>Obergefell</em>, where the government wasn’t a party – it wasn’t a bad year for liberty.</p>
http://www.cato.org/blog/kennedy-swing-roberts-back-reservation-scalia-scaliaMon, 29 Jun 2015 14:09 EDTIlya Shapiro (Author at Cato Institute)Ilya Shapiro